Welcome to Common Gunsense

I hope this blog will provoke some thoughtful reflection about the issue of guns and gun violence. I am passionate about the issue and would love to change some misperceptions and the culture of gun violence in America by sharing with readers words, photos, videos and clips from articles to promote common sense about gun issues. Many of you will agree with me- some will not. I am only one person but one among many who think it's time to do something about this national problem. The views expressed by me in this blog do not represent any group with which I am associated but are rather my own personal opinions and thoughts.
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Monday, November 26, 2012

Self defense in Minnesota?

This post was updated on September 2, 2013


There is a lot of sadness in a small town in Minnesota after the shooting of two teen-agers on Thursday. Thanksgiving must have been awful for all of the people involved. I can relate. I have been waiting for the press conference about this gruesome shooting that took place in Little Falls, Minnesota on Thanksgiving Day. On the face of it, one could think it was a self defense shooting. But more details were coming and today they were released. From the article:
"According to the complaint, Smith told investigators:
He heard glass breaking around noon Thursday while he was in the basement. It was the latest of several break-ins that he's experienced. Brady started coming down the stairs, and Smith shot him with a rifle by the time he saw the intruder's hips.
Brady fell down the stairs and was looking up at Smith when the homeowner shot him in the face.
"I want him dead," Smith explained to the investigator for the additional shot.
Smith put Brady's body on a tarp and dragged him to an office workshop.
A few minutes later, Smith heard footsteps above him. As in Brady's case, Kifer too started down the stairs and was shot by Smith by the time he saw her hips, sending her tumbling down the stairs.
Smith attempted to shoot her again, but his rifle jammed, prompting Kifer to laugh.
Upset, Smith, pulled out a revolver he had on him and shot her "more times than I needed to" in the chest, he said.
Smith dragged Kifer next to Brady as she gasped for her life. He pressed the revolver's barrel under her chin and pulled the trigger in what he described as a "good, clean finishing shot" that was meant to end her suffering.
Smith acknowledged leaving the bodies in his home overnight before calling a neighbor to ask about a lawyer and to request that authorities be notified.
Tessa Ruth, an aunt of Brady, was at the hearing and said she wished Smith had fired a warning shot or called police instead of shooting. "It wasn't right for them to be there and, yes, he had a right to defend himself. But to execute them like that...""
Indeed. Some people are quick to shoot when it's not necessary. Yes, these two young people broke into Smith's house. They shouldn't have. They both appeared to have some other problems in their lives and one wonders what they were doing out on Thanksgiving Day breaking into this man's home. From another article:
The brother said this was the latest of eight burglaries within the last few years, with the most recent on Oct. 27, when about $10,000 worth of guns, electronic gear and cash were stolen after thieves broke out a panel in a lower-level door. He said not all the burglaries were reported but that the one last month was reported to the Morrison County Sheriff's Office.
Loved ones of the two teens, as well as authorities, say the shootings went beyond self-defense. Neighbors described Byron Smith as a loner who liked to shoot his guns often, intimidating and worrying nearby residents.
Shaeffel said investigators told her that Brady had been shot in the shoulder and head, and that then Kifer was shot.
She said her brother made good money working for their father's tree-trimming business and didn't have to resort to burglary.
She said that Kifer had been in treatment more than once for abuse of controlled substances, and speculated that her cousin might have been after pills. Kifer had recently returned to school and had been trying to straighten out her life, Shaeffel said, adding that Kifer had stolen Adderall pills from Shaeffel's home.
"Yes, she had an addiction problem and stuff, but that doesn't mean she deserves to get murdered at 18 years old," Shaeffel said. "I understand they came there to rob them, or whatever, but shoot them in the shoulder and call the cops."
Shaeffel, 27, lives near the Smith house and went there Sunday with her close friend, Tiffany Kostohryz.
"I just wanted to see," Shaeffel said, looking toward the garage. The red-brick house with peeling paint is tucked out of view from the road.
Smith's neighbor Lori Williams said she had complained to authorities about the frequent shooting on Smith's property, worrying that children playing outside could be hurt. But deputies had told her and her husband that nothing could be done because his property was outside city limits, the couple said.
They described Smith as an odd man who kept to himself. "He didn't say 'boo,'" Scott Williams said.
So it was known that Smith had guns and other things of value in the home that had been previously stolen. I have written about stolen guns a few posts ago. At least this last burglary was reported by Smith to law enforcement as it should have been. But if he chose to live in this secluded area and had had previous break-ins, wouldn't you think a security system would be a good idea? And further, do people like this who are so paranoid about the world around them sit around in their homes with their shotguns and handguns at the ready just in case? And even if they do, how about a warning shot, as was suggested, or holding the teens at gun point while calling law enforcement? Did this man truly think this was a self defense shooting? Does anybody? Raise your hand if you think it is ( and don't send me your comments saying you would have done the same thing- they will be unwelcome). Luckily for the families of the victims, the Shoot First law did not pass in Minnesota or the man could have tried using it to keep himself from being charged for murder.

There are many more unanswered questions that will surely come out later. For now, though, this was a brutal execution style shooting committed by an apparent law abiding gun owner. This case is very painful for me to read about because it is quite reminiscent of my own sister's murder. Her body was found in my ex, and now dead, brother-in-law's basement and was not reported until the next day. Her friend's body was found in the upstairs with evidence of a chase leaving blood drop all around the house. Both bodies were shot more times than was necessary to kill them. My brother-in-law sat in his house for a day before reporting that he had shot 2 people and then not to law enforcement but to his divorce lawyer. What in the world happens to people in these situations?

Guns make these kind of incidents very possible and they happen far too often. As long as we just shrug our shoulders and say we can't do anything, then we won't. We have a gun culture that encourages too many people to have too many guns in too many places. This sort of laissez faire attitude leads to people thinking they can do anything they want in anger or in depression or after consuming too much alcohol or when abusing a spouse or partner. These are not criminals. These are law abiding gun owners who sometimes have problems of their own but are not prohibited purchasers. If we, as a country, would have a serious discussion about the role guns play in our every day lives and then pass some common sense laws that would send a message that guns and ammunition will not be available to just anybody and that access to guns by people who shouldn't have them will be illegal, we might make a chink in the armor of the NRA's crazy world where guns are the answer to everything. Other countries have figured this out. It's our turn to be better than this. It's time to demand a plan and deal as adults with the daily carnage. Like the "Little Engine That Could", I think we can do this.

As if the above brutal shooting was not enough, though, there were quite a few other holiday week-end shootings which I will not list in its' entirety. But here a few more that have come to my attention:

  • There was a shooting in a Colorado 7-11 store parking lot. Interestingly, one of my readers wondered if there were just as many shootings at, say, 7-11 stores as there have been at Walmart stores. Here is one. I'm sure there are others. It's just that Walmart is leading the list right now for the most shooting and gun incidents- not something of which to be proud.
  • Two motel shootings in Texas within the same number of days. Really. It's true. Here's one of them where one was killed and another injured. This one, also in Dallas, was a triple murder with bodies found in a motel room not far from the scene of the other shooting. Hey, it's Texas where gun laws are loose and shootings are frequent.
  • Two dead and 8 wounded in holiday shootings in the Philadelphia area.
  • Check out the Kid Shootings blog for the numerous incidents of shootings involving kids in the past week or so. It's enough to make a grown man cry. What are we going to do about this national public health and safety problem? There are young kids with access to guns shooting siblings; there are innocent teens shot while being outside or at parties. One boy was shot at a gun range. One boy shot himself in the face. Really folks. These are real people doing stupid and dangerous things with guns. Most of them are totally avoidable and all are senseless.  

Lives depend on our doing the right thing in the name of the victims of gun violence.

UPDATE:

As I thought, new information will keep coming forth about this case. Read this latest addition to the Star Tribune article to which I linked above:
Smith appeared for a 10-minute court hearing late Monday morning wearing an orange jumpsuit, his hands and feet in shackles. Bail was set at $2 million, with the prosecution noting the defendant's extensive travels to Beijing, Bangkok, Moscow and elsewhere overseas while he was working for the U.S. State Department.
In asking for the high bail figure, County Attorney Brian Middendorf said the incident was a case of cold-blooded murder. "The circumstances are appalling and far beyond any self-defense claim," he said.
Sheriff Michel Wetzel told reporters Monday afternoon that Smith explained to authorities that he didn't call immediately after killing the two because "it was Thanksgiving. He didn't want to trouble us on a holiday."
As for whether Smith could be justified in shooting intruders, Wetzel said that a citizen does have to right to protect person or property, but it has to be reasonable.
What Smith did "went further than the law. It doesn't permit you to execute once the threat is gone."
This bears repeating: ""..it was Thanksgiving. He didn't want to trouble us on a holiday."" Really Mr. Smith? Are you kidding? Mr. Smith is in big trouble. Anybody who sits around in his house with two dead bodies without reporting the killings has something sinister on his mind. Like maybe, what story he could devise concerning why he had just murdered two teen agers. And further, why did he not report this directly to law enforcement? He went to a neighbor instead? My brother-in-law reported that he had murdered two people to his divorce lawyer. Yes, really. And that was after sitting in his house over night with two dead bodies. Some people should not have access to guns. Too many people are shot to death by people like these guys.

UPDATE #2

With every article, some new information comes out about the Minnesota shooting. Here is the latest one from the Duluth News Tribune:
Though Kifer was "already hurting," she let out a short laugh, Smith told investigators. He then pulled out his .22-caliber revolver and shot her several times in the chest, according to the complaint.
"If you're trying to shoot somebody and they laugh at you, you go again," Smith told investigators, according to a criminal complaint filed Monday.
Is that true? Do people laugh when they get shot? And does that make a shooter more angry so they need to finish them off? This is one sick and twisted man. And more from the article:
Minnesota law allows a homeowner to use deadly force on an intruder if a reasonable person would fear they're in danger of harm, and Smith told investigators he was afraid the intruders might have a weapon. However, Smith's actions weren't justified, Morrison County Sheriff Michel Wetzel said.
"The law doesn't permit you to execute somebody once a threat is gone," he said.

UPDATE #3

Here is yet another article about this story. From the article:
"The fact of the matter is, if people have all of the facts, they would not be quite so divided in their opinions," he told The Associated Press, noting that many details have not been made public. "It's not as controversial or as unclear an issue as people might think at first blush."
Smith, a retired U.S. State Department employee, was charged Monday with two counts of murder in the deaths of 18-year-old Haile Kifer and her cousin, 17-year-old Nicholas Brady. According to the criminal complaint, Smith shot the teens multiple times as they tried to burglarize his house, which he said had been broken into before.
Minnesota law gives homeowners the right to protect themselves and their property, but Wetzel said they don't have the right to execute an intruder once the threat is neutralized.
According to the complaint, Smith told authorities he was fearful after several break-ins at his home in the town of about 8,000 people. The complaint said he told authorities that he was in his basement on Thanksgiving Day when he heard a window break upstairs. When he saw Brady on the basement stairwell, he fired — then shot him again in the face after he fell down.
The complaint said Smith told an investigator: "I want him dead."
Smith said he dragged Brady's body into his workshop. When Kifer came down the stairs, he shot her multiple times as well, and dragged her into the room with Brady. She was still gasping for air, so he fired what he called a "good clean finishing shot" under her chin "up into the cranium," the complaint said.
And then police weren't called until the next day.
John Lange defended Smith, whom he called his best friend, saying that even after reading the details of the complaint, he didn't feel Smith should be in jail.
"You have a right to defend your home," Lange said. "He's been through hell."
Little Falls resident Liberty Nunn, who said she knew Nicholas Brady's older sister, said Smith could have simply shouted at them to stop. She said she hopes Smith goes to prison "for a very, very long time."
"Those are two young lives that were taken," she said. "It's just not right."
Some went to social media to express opinions, including Facebook pages set up to support the victims' family that also attracted comments slandering the victims. The creators of the pages did not return messages seeking comment.
Family members of the victims also did not return messages.
Morrison County Attorney Brian Middendorf's office said he would have no comment Tuesday. On Monday, he acknowledged the case could create controversy.
"I would ask that people not rush to judgment," he said. "Let the investigation continue. Let all the facts come out in court."
State Rep. Tony Cornish, a former police officer who sponsored a bill last year that would have expanded circumstances in which people could use deadly force, said he believes Smith would have had a legitimate defense if he would've stopped firing after his first shot.
"After that first shot, when it turned into a grisly execution, he lost any hope he had of not being prosecuted," Cornish said. "He lost all my support."
Rich Collins, a Morrison County commissioner, said that as a National Rifle Association instructor for basic home protection, he is a firm believer that everyone has a right to protect their property — but that they must also make attempts to retreat and call law enforcement.
"These young kids should not have been in this guy's house. That's a given. Nobody can deny that," Collins said. "Did he have the right to shoot them? Yes he did. ... But in the manner in which he used that right, I think, was excessive."
I continue to be amazed at the audacity of some who love to go after victims. Why do people have to slander victims? These teens allegedly did something wrong but now they are dead. This is a tactic of the extreme gun nuts and happens frequently. As long as that continues, there is little hope for any serious discussion about gun violence issues. These folks are in the minority but they give a bad name to the pro gun rights folks.

From another article about the teens allegedly breaking into another home:
Investigators were working late Tuesday to determine whether the two teenage cousins slain during a home burglary in Little Falls, Minn., on Thanksgiving Day committed a similar crime just hours before the fatal shootings.
Preliminary findings suggest that Nick Brady, 17, and Haile Kifer, 18, were involved in another break-in Wednesday night, 6 miles south of the home where Byron Smith claims he shot them in self-defense, said Morrison County Sheriff Michel Wetzel. Smith, 64, a retired U.S. State Department worker, is charged with second-degree murder in the double shooting, which Wetzel has characterized as "cold-blooded" executions carried out after the teens were disabled by initial shots.
In the latest development, investigators are piecing together evidence recovered from a red Mitsubishi Eclipse that Brady had been driving, and which was discovered Friday parked a block away and around the corner from Smith's property, 3 miles north of Little Falls.
That same car was seen in a driveway last Wednesday evening 3 miles south of Little Falls, in the vicinity of a house belonging to Richard L. Johnson, a retired Little Falls High School teacher who had been in Spain until Sunday evening.
Wetzel confirmed that deputies who had been called to the Johnson neighborhood about the car identified it as one used by Brady, but not registered to him.
The sheriff also said that Brady had walked up to the car, was questioned by the deputies and released. The burglary at Johnson's home was at that time undiscovered, he said.

UPDATE #4:

Here is a great column from Minnesota columnist Nick Coleman about the Little Falls shooting:
Incredible, I know. But the “Stand Your Ground” bill — written by the National Rifle association, pushed by the Republican legislative majority and supported by many outstate DFLers — would probably mean that the 64-year-old man who shot the two teens in his basement, then left them there overnight because he didn’t want to disturb the cops on a national holiday, would be nearly immune to arrest or interrogation about the blood-curdling woundings-cum-executions he performed in his home.
Judging by the comments on some public forums, a lot of Minnesotans would be hailing him as a hero for his use of a high-powered Ruger Mini-14 military-style rifle to bring down his victims, and then finishing them off with a .22, fired into their chests, faces and under their chin into their heads.
“A good clean finishing shot,” the obviously demented homeowner, Byron David Smith told the cops in one of many bizarre touches that make the veracity of his story impossible for the public to assess.
One horrifying part of his story, as told to the authorities, led to murder charges: His clueless bragging about deliberately killing each of the teens, one by one, after they had been wounded. “The law doesn’t permit you to execute somebody after the threat is gone,” said the Morrison County Sheriff.
But it would have. If Dayton hadn’t vetoed the bill that was passed last spring.
Current state law allows a homeowner who fears for his life to use lethal force to defend himself. But it is up to a judge to determine whether that fear was “reasonable” or not. The bill passed last spring would have bypassed the judge and taken the shooter’s word as Gospel: “I was fearful, so I killed ‘em” would have been good enough.
More than that, the law put handcuffs on the cops, requiring them to presume the shooter was innocent and prohibiting them from making an arrest unless — and only if — they found probable cause after an investigation. If that law had taken effect Aug. 1, as it would have without the veto, the Little Falls shooter would not have been taken into custody, would not have been interrogated and might well still be sitting in his house, cradling his Mini 14 in his lap while Minnesotans scratched their heads. True, a forensic investigation would eventually have produced evidence that the teenage victims had been shot multiple times, and at close range while lying on the basement floor. But there is no telling what would or wouldn’t have happened after that. If Byron David Smith was still puttering around the house, keeping his mouth shut, he might never have been arrested.
“Most sane people shut up,” said Tom Weyandt, a retired St. Paul city prosecutor whoanalyzed the flaws in the gun lobby’s bill for MinnPost last spring. “That law would, in effect, have proved criminal immunity in cases where a defendant claims self-defense. It was such a poorly worded statute, with such strange things in it, that it would’ve taken decades to straighten out. It was a stupid bill.”
Fortunately, it did not become law, because the governor killed it on his desk, with the urging of most law enforcement agencies and prosecutors in the state, who uniformly opposed it. And, now that the GOP majority in the Legislature has disappeared, the bill is not likely to come back.
Let’s be grateful that it didn’t happen. Minnesota, just barely, escaped becoming Florida North.
Thank you Nick Coleman.

UPDATE #5:

It now turns out that the shooter of the Little Falls teens wants first degree murder charges dropped:
An attorney for a Little Falls man accused of killing two teenagers who broke into his home is trying to get first-degree murder charges dismissed.
The Associated Press reports that at a hearing Friday in Morrison County District Court, a lawyer for Byron Smith, 56, questioned investigators about what they did after the November deaths of 17-year-old Nicholas Brady and 18-year-old Haile Kifer.
Judge Douglas Anderson will give attorneys until November to file written arguments, then he will make his decision on whether the charges should be dismissed, reports the Pioneer Press.
Smith’s attorney says there is no enough evidence for the indictment. Steven Meshbesher also argued that prosecutors committed misconduct during grand jury proceedings and that there were other flaws in the case.
Meshbesher also wants evidence obtained during searches of Smith’s house to be suppressed, the St. Cloud Times reported.
Smith has been free since posting $50,000 conditional bail after he was initially charged with second-degree murder. A grand jury later indicted him on first-degree murder charges.
Prosecutors say Smith shot Brady and Kifer multiple times after they broke into his home last November. His attorneys have claimed he acted in self-defense.
The shooting kindled much debate about how much force homeowners can use when protecting property, particularly during home invasions.
Where is common sense?



52 comments:

  1. OK, it seems that Smith's defenders want to use the Burglary Statute (609.582, 2012 Minnesota Statutes)as a justification for the murders. This statute uses the language as elements of the for all grades of the crime:

    "Whoever enters a building without consent and with intent to commit a crime, or enters a building without consent and commits a crime while in the building"

    If these people were on the property without consent--why the delay in contacting the authorities?

    There is another aspect of this which most people are unaware--deaths need to be reported to the proper authorities.

    All sudden or unexpected deaths and all deaths that may be due entirely or in part to any factor other than natural disease processes must be promptly reported to the coroner or medical examiner for evaluation.

    Smith was able to stop the threat, but admits that he "shot her "more times than I needed to" in the chest."

    Sorry, but Smith has gone beyond mere defence and has become judge, jury, and executioner in violation of Due Process.

    Funny how people talk about the "common law" yet are ignorant of one of its most important concepts. Clause 39 of the Magna Carta provided:

    No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

    This was incorporated in the Constitution under the Bill of Rights. Fifth Amendment to the United States Constitution provides:

    [N]or shall any person . . . be deprived of life, liberty, or property, without due process of law . ..

    Section One of the Fourteenth Amendment to the United States Constitution provides:

    [N]or shall any State deprive any person of life, liberty, or property, without due process of law .

    Not only do the right to kill laws make a mockery of human life, but they also denigrate the concept of justice which is a far more real right than any "gun rights".

    Smith will receive his due process rights, but not his victims.

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  2. To be quite honest, Smith's story sounds like something published in the Daily Mash:

    IT was three o’clock in the morning when I heard the ominous creak of my feet on the bedroom floor.

    I tiptoed slowly downstairs, thinking feverish thoughts about what was soon to occur. I opened the kitchen cupboard where I keep my shotgun, hid it inside my dressing gown, got in my car and went looking for a tramp.

    It didn’t take me long to find Bobby. He was huddled under the awning of a disused petrol station and welcomed my offer of a cheese toastie, some hot coffee and a scented bath.

    We talked in the car and he struck me as a decent soul to whom life had perhaps dealt an unfair hand. But thankfully his hard luck story made not the slightest dent on my conscience as I followed him up the garden path and into the house before pulling out the shotgun and blasting him in the middle of the back as soon as he reached the drawing room door.

    In these situations it is vitally important to make full use of the adrenalin, so I called the police, somewhat breathlessly, and uttered the magic words: “A man’s broken into my house… I was so scared… I grabbed my gun and shot him… I think he might be dead.. I don’t know what to do.” I may even have sobbed a little.


    except, Smith is either too ignorant or too stupid to get his story straight.

    It's sad that US reality sounds as if it came from the Onion or the Daily Mash because of people who like to fashion themselves as "conservative", when what they really mean to say is that they are not in touch with reality.

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  3. Let me see if I have this story straight: An angry loner with a severe gun fetish sees two teens who break into his unsecured home and then shoots them, multiple times, execution style, with no warning at all, then doesn't report it for a day, and not at all directly to the police.

    I know what the pro-gun extremists who read this page are thinking. They don't care how violent and irresponsible the home owner was. All they'll see is a guy and his castle. Just an innocent, normal guy using "2nd Amendment remedies" against perps, right? Doesn't matter how young the robbers are, or the fact that they were unarmed, or the degree of overkill. Sick.

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  4. First, this is clearly not any sort of self-defense case. The shooting is completely outside of Minnesota law in its current form - and still would have been illegal under the proposed changes that Governor Dayton vetoed this year.

    Laci references the burglary statute above. Burglary in Minnesota can be either a misdemeanor or a felony, depending on a number of circumstances. Simply being on one's property without consent does not allow the use of deadly force in Minnesota.

    Minnesota law on the use of deadly force in one's home is controlled by MN 609.065 - specifically, deadly force can be used to to prevent the commission of a felony in the actor's place of abode. Fear of bodily harm is not an element of the use of deadly force in one's home (see State v. Pendleton) - also see State v. Carothers which held that there is not a duty to retreat in one's home.

    That said - even if the defendant in this case was justified in using deadly force initially (and I would argue he was not based on what I've read so far) - your ability to use deadly force in Minnesota ends - and ends immediately - when the threat is over. There's no legal right to shoot the individuals again and again as appears to have happened according to the indictment.

    Jason makes some other comments above that I flat out disagree with - I don't know anyone on the "pro-gun" side of the fence here in Minnesota that thinks this guy was in the right.

    ReplyDelete
    Replies
    1. I was awaiting your comment, Bryan, knowing you could not resist. There are actually folks who said initially that Smith was justified, including his friend who said as much in one fo the articles. So yes, there are people who do believe Smith was justified in what he did.

      Secondly, who is Jason?

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  5. For Bryan and others who don't think gun guys will defend Smith in the shooting of two teen-agers, here is a quote from a pro gun guy that was posted on the Facebook page of the Coalition to Stop Gun Violence: Christopher Sullivan posted- " Score +2 for the good guys!!! Yahoo. Let the body hit the floor...Let the body hit the floor!! :) "

    Yes indeed. There are people who believe that shooting teen agers in an alleged self defense incident is a good idea. Remember that Smith himself felt justified in shooting these two kids. He was, I assume, a Minnesota gun guy.

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  6. Japete,
    Warning shots as a rule have a high possibility of getting you in trouble. There is no Minnesota law allowing warning shots. If you fire one during a confrontation, you might be charged with aggravated assault. In fact a woman was just sentenced for that crime in Florida for firing a warning shot in her home to back off her husband/ex who was violating a protection order by being there. Also as you've said before, the bullets go somewhere and the person shooting them is responsible.
    While I'm sure more information will come to light as the case progresses, can you share what common sense gun laws would have prevented this shooting?

    ReplyDelete
    Replies
    1. Smith would be better off with an aggravated assault charge and two teens would be alive today. I can't believe you think that would not have been a better outcome. Read my post for the answer to your question.

      Delete
  7. You said " And even if they do, how about a warning shot, as was suggested, or holding the teens at gun point while calling law enforcement? Did this man truly think this was a self defense shooting?"

    You realize that firing a warning shot is just as big a legal problem for the homeowner as actually shooting the burglar? Perhaps more so as prosecutors have successfully argued that if the homeowner had time to fire a warning shot he wasn't in danger.

    Under Minnesota's law that you and Heather helped preserve it didn't have to be self defense, that is he didn't have to be in fear of his life. You cannot save your life in Minnesota without retreating but you can shoot someone to stop them from committing a felony in your domicile. In other words by the letter of the law, you can protect your things, just not the lives of your loved or yourself.

    What you can't do is execute them after they have been stopped from committing the crime.

    ReplyDelete
    Replies
    1. You guys are really amazing. You should think about what you write before you submit it.

      Delete
    2. So are you saying thatbSmith was justified in shooting the kids in the first place? There is a lot that does't make sense about the case. Smith sounds like a crazy man to me and someone who shouldn't have been around guns. There are way too many people like him out there.

      Delete
    3. I am not saying that he was justified -- your state law says he was justified in using deadly force to stop a felony.


      609.065 JUSTIFIABLE TAKING OF LIFE.

      The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor’s place of abode.

      Burglary is a felony and falls under "preventing the commission of a felony in the actor’s place of abode."

      Once the burglar went down the felony was stopped and he should have stopped at that point and called the police. When he shot them again he moved from defense to 2nd degree murder.

      You insist that he should have fired a warning shot but if he had he would have been the one in trouble not the criminal. Hold him for the police? How do you recommend that he do that? Let's say that he stops the guy and tells him not to move. The burglar says "Screw that, I am leaving!" and does. The felony was stopped already so what is the homeowner going to do? Shoot him? Guilty of assault since the felony has stopped. As far as I am concerned as he was leaving I would let him. As you keep pointing out, we aren't the police and we don't have the ability to use deadly force as a method to make an arrest.

      The first time he shot each burglar was justified under Minnesota law, the law that you and Heather fought to preserve. After the first shot at each he became the criminal. I probably wouldn't shoot someone over property but that is your law in Minnesota.

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    4. It's your state law as well, Robin. I still don't get what you mean when you say Heather and I preserved the law. What law did we preserve? We fought against Shoot First. Is that what you mean? We preserved the already existing Castle Doctrine, already in Mn. Statutes?

      As to your other comments, please don't keep this up. You are beginning to look foolish. I maintain that Smith was not justified in even firing the first shots. Something else could have been done to stop the teens. Further, be careful about what you say. I believe there is a lot more to this story still to come. The circumstances just don't add up. Smith was a crazy person. Anyone who reads the articles about what he said would agree. I'm glad to hear you wouldn't shoot someone over property.

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    5. What I mean is that the law you defeated changed the words from "The intentional taking of the life of another is not authorized by section 609.06, except... preventing the commission of a felony in the actor’s place of abode." to "Use of Deadly Force..."

      Strict reading of the current law would indicate that you can kill them. The other would fall in line with other states where you may use a deadly force only to stop them, not to kill them." You preserved this wording. So congratulations. I don't approve of what he did and wouldn't do it myself but it is your law and you fought to keep it. That is what I meant.

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    6. Robin, the wording of the current law did not change when Shoot First was not passed. It stayed the same as it was. If that is what you mean by preserving it, all we did was oppose changing the current law to something different. Strict reading of the current law does not allow for Smith to have killed these 2 people. Existing law does not allow him to execute a person when there is no chance of them committing any crime - ie. lying on your floor bleeding, as in this case. So I think you are saying existing law permits this guy's action. That is wrong and that's why the guy is being charged with murder.

      Your comment is murky and obtuse. Congratulations?? What the heck does that mean. We have not opposed the current castle doctrine language. We did nothing to preserve anything. All we did was oppose the changes to current law pushed by people like you. The current law is not my law. I had nothing to do with crafting it or dealing with the language of it. To say otherwise is false. Your reasoning is flawed and misdirected. I have no idea how you came to your reasoning because it is backwards and just plain wrong.

      When I opposed Shoot First, it was to leave things as they are because they have worked so far. No one who has used deadly force in a justifiable shooting in Minnesota has been found guilty of murder. That is what you guys want, right? But then you wanted to go further and make it extremely difficult to charge someone and prosecute them for cases like this one. I doubt even this case would have been called justifiable under Shoot First because it is so extreme and brutal. Was this a case of "shoot first and ask questions later" or was it a planned shooting? Time will tell.

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    7. japete writes: "I maintain that Smith was not justified in even firing the first shots. Something else could have been done to stop the teens."

      Legally, this entirely depends on the circumstances. An individual in their place of abode is not required to retreat and may use deadly force to prevent the commission of a felony - many burglaries, but not all, in Minnesota fall into this category.

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    8. japete writes: "Strict reading of the current law does not allow for Smith to have killed these 2 people. Existing law does not allow him to execute a person when there is no chance of them committing any crime - ie. lying on your floor bleeding, as in this case. So I think you are saying existing law permits this guy's action. That is wrong and that's why the guy is being charged with murder."

      I would agree that in the circumstances of this case - Smith shooting them, seeing the threat stopped, and then killing them after the threat has ended - is completely outside of Minnesota law. The 2nd degree murder charge is appropriate.

      He may well have been fine legally had he shot them, stopped the threat, and then called the police. Again, this depends on some very specific circumstances - and one needs to read both the statute and understand the relevant case law to understand the difference.

      The challenge in Minnesota law right now around the use of deadly force, in one's place of abode and outside of one's abode, is that to truly understand the circumstances in which deadly force can be legally used - you have to understand *all* of the statutes along with *all* of the case law.

      The change in law that was vetoed by Governor Dayton would have cleared up much of that legal confusion - but rather than make things clearer - you seemed to believe that confusion was better?

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    9. The law has been working fine for many years. You guys wanted it to change because the NRA wanted you to. You want to be able to shoot someone and not be held responsible. That is why your Shoot First proposal was a bad idea. It was a solution looking for a problem.

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  8. Japete,

    I never said that. I merely suggested that your suggestion regarding warning shots would not necessarily solve the problem. Obviously holding him for police would have been the best outcome. Or it could have easily ended up like many other defensive uses of a firearm where he would have seen the gun and left at great speed. Or perhaps something radical like yelling that he has a gun and they better leave. Most burglars in the United States tend to prefer unoccupied houses.
    I tend to think that once the physical evidence is looked at, it will likely look worse. Keep in mind that even though the man is sounding bug nuts to almost everyone, he is telling a story that he thinks is portraying him in a positive light. And so far, his story is all we have heard.

    I did read your post, and others in the past. You have said many times that you have no wish to ban posession of firearms. I have also read your recommendations regarding the gun show loophole, repealing shall issue carry permits, not letting crazy people have guns, etc.
    Both of us do seem to agree that a gun only solves a very narrow band of problems,yet some seem to think it can solve almost everything.
    But Mr. Smith, up until he comitted these killings, had done nothing that we know of that would bar him from posessing firearms inside his home. He was a state department employee, so he likely had an extensive background check.

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  9. It's interesting how the gun guys are arguing here that a warning shot should not have been made because it could, maybe, potentially get the gun owner into legal hot water. But they don't care at all that it could have saved two young lives. Selfish thinking. Of course, the gun owner is in legal hot water anyways.

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    1. Baldr,

      You are correct, the person who shot those two people in Little Falls is in trouble, and rightfully so. Just by reading the story as told by thr homeowner,it's fairly obvious that he had gone beyond self defense. I believe that Mr Smith wasnt thinking of self defense when this happened. It sounds like just based on his statements given to police, they felt justified in charging second degree murder.
      I believe I gave two alternatives in a previous post giving alternatives to a warning shot. Both alternatives are also trained in the military.
      Right now a woman in Florida is looking at twenty years in prison for firing a warning shot trying to scare away an abusive person that was violating a restraining order.
      Given a choice between a warning shot and potential time in prison or one of the two alternatives I gave earlier, then I'll likely go with the ones that dont involve prison.

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    2. Laci,
      I havent seen anyone posting here taking the side of the murderer. There dont seem to be any issues at all as to whether this is a self defense issue. It seems fairly obvious to most and apparently the Morrison County Attorney.
      Could you please share your definition of gunloon? It seems a perjorative name to me, and I want to see if you're refering to me, or perhaps others. Using names like that dont really advance constructive discussion.

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    3. The only thing that doesn't involve prison is not shooting someone or firing a shot.

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    4. I suggest, Mark, that you check out some of the "gunloon" blogs to find the people to whom Laci is referring. I already posted what one of them tweeted to the Coalition to Stop Gun Violence. There are plenty more of those out there. On the gun blogs, people like me are debased and demeaned for our views. We are sometimes threatened. We are called names and generally treated badly. Just because you haven't seen them doesn't mean the rest of us haven't had to endure this crap on our blogs, social media pages and articles about gun violence. I, in fact, do not think you fall into the category of gunloon but some of your comments do make me wonder if you think at all about the victims and the fact that there are too many shootings by law abiding gun owners like yourself. That doesn't mean you will shoot someone but I'm betting that Smith didn't think he would either. Nor my brother in law who no one would have suspected would shoot someone. So if you are a pro gun person, you need to come up with some solution to this problem. This is not my problem but it became mine as soon as my sister was shot to death. People on pro gun blogs make fun of me for "morning" my sister and think that has made me crazy. Try it sometime and see how you would react. Has anyone in your family been shot to death? So when people like the Weer'd Beard, Pagunblog and Joe Huffman stop demeaning those of us who have very good reason to question to the gun culture, then perhaps we will stop calling you guys gun loons. Real people who were loved by many are being shot to death every day. This is nothing to be cavalier about or insensitive about.

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    5. I have been to some of the blogs you mention. I can also sympathize regarding your feelings after your loss. This is your blog and as your guest here I try to follow the rules you've posted here. I can also understand your being frustrated at what others have said to you. I can only control my behavior, and am not responsible for anyone else's, minus my kids of course. So please understand when I sometimes get frustrated when these names seem to be directed at me.
      I must respectfully disagree with you on one item. From what I've read so far, I think that Mr. Smith knew he was going to shoot someone. By his own account, he didnt even wait for a full view of the two that broke into his house. It will be interesting to see if they convene a grand jury to determine if charges for first degree murder are warranted.

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    6. Thank you, Mark. I actually agree with you about Mr. Smith. That is what I mean about finding out more about this case which may change what we now know.

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    7. Oh, and Mark- I am more than frustrated at the aspersions cast on ALL of us in the pro gun violence prevention movement. The "gunloons" make false assumptions about what we are all about. They are wrong. We are not out to take away rights and guns. But that is what is said about us no matter what we say. It is disingenuous and meant to ramp up fear and paranoia. It means that nothing productive happens in the area of gun violence prevention. I virtually never hear from the gun guys what their solution is to all of the senseless shootings. The only thing we get is more people should have more guns in more places. Obviously that is not working out at all. So let's have some discussions without the nonsense.

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  10. OK, the gunloons are taking the side of the murderer, rather than let justice take its course.

    The problem is that there are too many issues in this case to say that this is self-defence, but gunloons don't really care about self-defence, they want mob justice, which isn't justice at all.

    Should justice just become vendetta and blood feud? Where is society then?

    If you are letting legal process work, then people will become frustrated and EVERYONE will start taking the laws into their own hands.

    As for persuasion, the gunloons are proving that they are barbarians who don't care about law and order. They would destroy over a millenium's worth of development to return to the dark ages.

    Most people are not sympathetic to that in a civilised country.

    And I think most gunloons don't really have the intelligence to understand where they are taking society.

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    1. Michael, much like you don't want to be grouped in with all gun-control folks - don't group everyone in the same group. In all conversations I've had/read regarding this case - everyone has called for restraint in rushing to judgement on either side - or has said the shooter went too far. I haven't seen anyone saying it was a completely justified shooting other than a few OBVIOUS Twitter trolls.

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    2. Would you call yourself a troll, Pat? There is no rush to judgement here. The facts are the facts. Just read the articles for what Smith had to say. He is providing us with the talking points. If you believe there are only a "few OBVIOUS" Twitter trolls, you haven't been reading the right blogs.

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    3. See, thats why I don't comment on your blog Joan - you don't read my responses (never said you were rushing to judgement), take them out of context (I agree Smith appears to have gone too far), and immediately resort to name-calling (I resent being called a troll for presenting the rebuttal).

      So much for the #gunconversation, looks like its back to Twitter.

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    4. What does this mean then, Pat? " everyone has called for restraint in rushing to judgement on either side" Are you included in that group of "everyone"? Or what did you mean by the statement then? You can stop feeling sorry for yourself Pat. You are one of the folks who tried to sign up for our youth peace event last summer which was meant for youth and adults working on peace issues in Minneapolis. You have also tried to be on our e-mail list for Protect Minnesota so you can find out what we are up to. So if you want to comment on my blog, be clear about what you are saying and then don't turn it around to blame me when I challenge you. That's a favorite tactic of the gun lobby. What about what you said was taken out of context? Name calling? Give me a break. What name did I call you? A troll? You used the word first. Check out the gun blogs for name calling at its worst. If trying to come to a Protect Minnesota event made for youth working on peace issues isn't trolling, I wonder what it is? You get your feelings hurt pretty easily Pat. Give it a rest.

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    5. Why? Because someone who owns a firearm can't possibly be interested in preventing violence? Someone like that can't possibly have anything beneficial to add to a children's peace event! I have worked with children and teens for the past decade, I also abhor violence and want to make my world (and theirs) a better place.

      This is what I'm talking about. Because I own a gun, and promote individual responsibility for ones' actions - I'm somehow personna non grata to you and Heather. You'd rather attack than work with me -- my feelings aren't hurt, you've just displayed your true feelings regarding gun control.

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    6. No Pat. We don't take you seriously when you do things this way. You can approach us personally and ask to work with us instead of employing your clandestine tactics. You were not invited to that event and you didn't want to be there to actually do the work, did you? I would be surprised if you took a genuine interest in working to prevent gun violence. If you are serious, let us know. We can talk. Otherwise, don't pretend you are. Attack? Who does the attacking? Come on Pat. Get over yourself. You are the guys who attack those of us and call names. Read the gun blogs. I am attacked personally every day on gun blogs. Why would we work with people like that?

      You are a guy who supported Shoot First. That doesn't sound like someone who wants to work with us or someone who abhors violence. Actions speak louder than words. Your comments are disingenuous. We work with gun owners who are reasonable and don't spout the NRA rhetoric. They are genuinely interested and have contacted us to work with us. If you truly want to be part of our efforts, let us know. Otherwise don't complain.

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    7. I read alot of things Joan, and the Internet is a vast place. I periodically post factual items which may contradict your point of view - but never have attacked you (or ProtectMN) personally. Personal attacks serve no purpose, and are unnecessary to making my point.

      I will send my contact info to ProtectMN again this afternoon and await a response. I support anything that can stop the violence.

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    8. ...and I take back what I said about you not engaging in the conversation.

      Time will tell...

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    9. Why am I not trusting this? Why haven't you approached us before? Why have you been fighting for bills Protect Minnesota opposes? How can we know you are for real? Pardon me for being skeptical. Do you support or oppose Shoot First? Do you support background checks on all gun sales? Do you support sending records of mentally ill people to NICS? Do you support or oppose guns on campus? Do you actually support what Protect Minnesota is doing? That's when I will believe you. Otherwise I will continue to believe you are not genuine. Remember, the NRA has paid spies to get involved in our organizations. I knew one of them. She seemed genuine and friendly. She was not. We have reasons to doubt.

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    10. I HAVE approached you before -- for the past 2 years. You even commented above about my attempts. I sent my info to ProtectMN again this afternoon via email -- feel free to contact me. I'm happy to verify anything you'd need.

      As previously stated:
      I own firearms
      I support anything that can stop the violence
      I'm a big fan of personal responsibility

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    11. You didn't answer my questions, Pat. They are important to me and the efforts to stem the tide of gun violence. Will you wear a gun strapped to your hip or on your person in any potential meeting? That would be a no go for me or anyone else who would consider a meeting with you. "Personal responsibility" is a dog whistle for conceal and carry and self defense. What do you mean by that?

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    12. japete writes: "Will you wear a gun strapped to your hip or on your person in any potential meeting? That would be a no go for me or anyone else who would consider a meeting with you."

      So all individuals carrying firearms are irresponsible and dangerous?

      I thought you were interested in working with law abiding gun owners that were interested in preventing or reducing gun violence?

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    13. I don't hang around with people who have guns strapped to their hips. Anyone who is so afraid of their own shadows that they think they need a gun wherever they go does not really want to prevent or reduce gun violence. There is no evidence yet that it's worked. In fact, the opposite has happened. I prefer to be with people who genuinely believe that reducing gun violence also means fewer people carrying guns in fewer places. I doubt that you and I would agree to much of anything since the second I post something on my blog, you are there to attack or disagree. That doesn't usually lead to anything reasonable.

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  11. I respect people's wishes when I'm in their house - aka. your house, your rules. I view this as a chance to start a constructive conversation, not a political opportunity; I would hope you would view it that way as well.

    Personal responsibility. A person takes responsibility (and accountability) for themselves and their actions and how they may affect those around them. No one else is responsible for you except you aka. you can't blame your friends/parents/siblings/etc for your actions - it was directed more towards working with youth than as a mantra for myself, although, I AM a big fan of it!

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    1. Hmmmm. You didn't answer my questions, Pat. Taking personal responsibility applies to all the gun guys who allow access to guns by children, or accidentally discharge their guns or threaten others with their guns or actually shoot teen-agers, siblings, spouses, strangers, etc. with their legally bought guns. That is what I'm all about. With rights come responsibilities.

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  12. Yes the guy went overboard. And yes i can concede that after shooting the incapacitated was murder....but i just can't bring myself to feel any pity for these kids.

    Ive read reports that the teens weee involved in drugs and have stolen guns in the past. A home us one's castle, Joan- if someone violates that sanctity with robbery, being killed can be a natural consequence of certain life choices.

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    1. Show me a link to the kids having stolen guns before. Smith had some guns stolen from his home but not by these kids. Find the article that states that these kids stole guns. Being killed for robbery is not necessarily a natural consequence. Does every robber deserve to be killed? That's overboard, don't you think?

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    2. Sorry-id read another story that was since corrected concerning stolen guns. That said, being in someone's home is asking for trouble and while i don't think people deserve to die for robbery, how is a homeowner to know their intent?

      In this case, the homeowner may be nuts-he was known to the community and cops as a bad actor and still nothing happened. I think his first shot was warranted- everything after that however reads like a scene out of Dexter.

      Please dont avoid the culpability of the deceased. Ive worked in past capacities as a medic and in hospitals- addicts in many cases think nothing of human life to get a fix and are often a dangerous threat to those in tge way of a high.

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    3. Where did you read anything about these teens being addicts or high at the time of the shooting?

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    4. "She said that Kifer had been in treatment more than once for abuse of controlled substances, and speculated that her cousin might have been after pills. Kifer had recently returned to school and had been trying to straighten out her life, Shaeffel said, adding that Kifer had stolen Adderall pills from Shaeffel's home."
      http://www.startribune.com/local/180785621.html?refer=y

      In this case I'm going to have to go with the the Sheriff's view on this. My Sheriff might be a better term since I live in the county.

      "The fact of the matter is, if people have all of the facts, they would not be quite so divided in their opinions," he told The Associated Press, noting that many details have not been made public. "It's not as controversial or as unclear an issue as people might think at first blush."
      http://brainerddispatch.com/news/2012-11-27/little-falls-shooting-killing-2-teens-sparks-homeowner-rights-controversy

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    5. Yes, Mark, I added two articles to this post. Take a look at them.

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  13. The problem--was there really a robbery?

    So far, there are claims of glass breaking, but it seems that the investigating officers didn't find any evidence to back up that statement.

    If someone is on the property at the invitation of the property owner, they are not burglarising the property--see the law quoted above.

    I'm sorry, but this sounds like premeditated murder. It is far too similar to the Daily Mash account--except Smith didn't say he was in fear for his life.

    There are reasons that legal systems were created--trying to return to the Dark Ages is not a good idea.

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  14. I do think that mr smith acted Excessively, however I'm just curious if the intruders had been 35 year old African American ex cons, would everyone feel the same

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    1. That's a racist statement Mr. Miller. Please don't continue sending them to this blog. They will not be published but I publish this one to show what some gun guys are thinking.

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